County, state agree filing not warranted

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Spokane County Prosecutor Steve Tucker will not file charges in the death of a woman who died when her car broke through a parking garage barrier and plunged five stories onto the ramp below.

Tucker said said Friday he is closing the investigation of the death of Jo Ellen Savage after his office and the state Attorney General’s office concluded in separate reviews that there’s not enough evidence to prove the owners of the River Park Square garage were guilty of criminal recklessness or criminal negligence beyond a reasonable doubt.

Tucker, who had been reviewing since last September boxes of documents collected by federal prosecutors, released a letter from Assistant Attorney General Scott Marlow, saying state attorneys also believe it would be difficult to prove criminal charges against the officials of Cowles Co., or the corporation, for the Pullman woman’s death.

Neither their actions nor their inaction would be a “gross deviation from the standard of care a reasonable person would exercise in the same situation.” Marlow wrote.

Spokane attorney Steve Eugster, a former city councilman who has challenged aspects of the River Park Square development for more than a decade, called Tucker’s decision “a whitewash.”

Duane Swinton, an attorney for Cowles Co., said Tucker’s and Marlow’s conclusion agreed with the company’s longstanding assertion, that the garage was built and maintained to the applicable standards.

“We are hopeful this will lay to rest any controversy,” Swinton said.

Cowles Co. owns the firms that developed and own the River Park Square mall, and is the parent company of The Spokesman-Review. The garage and mall opened in 1974, but both were renovated and expanded in the mid 1990s. That renovation, which was done through a controversial public-private partnership with the City of Spokane, resulted in a series of lawsuits, including a federal securities fraud claim over the sale of garage bonds.

On April 8, 2006, Jo Ellen Savage was killed when her car collided with a concrete barrier that gave way, and the car was pulled out of the garage onto an entry ramp five floors below. Witnesses reported to police that Savage hit the barrier at a low speed.

The garage had experienced other problems with the barriers, known as spandrels, and critics accused Cowles Co. of ignoring warning signs of potential failures and putting the public at risk.

Last September, federal attorneys finished a year-long investigation into a series of allegations involving the mall and the garage, and concluded there was “no case of criminal wrongdoing” to be made involving the renovation and financing of the project. But any charges stemming from Savage’s death would be state crimes, Robert Westinghouse, criminal chief for the U.S. attorney’s office in Western Washington, said at the time.

He sent boxes of evidence his office had gathered to Tucker, to determine whether charges of manslaughter should be filed under state statutes.

At the time, David Savage, Jo Ellen Savage’s ex-husband and a former president of the Washington State Bar Association, said he believed there were “substantial grounds for a criminal prosecution for manslaughter” based on information he learned during civil litigation on the matter. The civil case resulted in a settlement by Cowles Co.’s insurers to Savage’s family, which he described as “substantially” more than $1 million.

Sending evidence from a federal investigation to a county prosecutor was an unusual move, Tucker said at the time. After he and his chief criminal prosecutor Jack Driscoll studied the files, Tucker sent evidence to the state attorney general’s office for a separate opinion.

On Friday, Tucker and Marlow both said the evidence they reviewed would not support charges of first-degree manslaughter, which requires proving criminal recklessness, or second-degree manslaughter, which requires criminal negligence.

In a letter dated March 27, Marlow wrote that state attorneys reviewed evidence from the federal investigation and as well as other information about the garage from “concerned citizens.” Included in the information were studies of the garage’s construction and renovation dating back to the 1990s which looked at the spandrels.

Many studies focus on some type of failure of the spandrels, ranging from catastrophic failure to simple cracking, and some studies are critical of the Cowles Co. subsidiaries failure to maintain the facility, Marlow wrote. Those studies can be considered an indication the owners were aware of potential issues with the spandrels, he added.

“The fact remains, however, that the majority of these reports and studies conclude, as did the Wiss, Janney, Elstner and Associates study, that the spandrels meet the applicable building code,” Marlow wrote. That particular study “was undertaken shortly after the April 2006 incident and it concludes that both as designed and as built the spandrels met the applicable building code and that maintenance of the facility did not play a role in the incident.”

Building standards at the time the garage was expanded in the 1990s called for the walls to withstand a horizontal force of 6,000 pounds per load; the Wiss, Janney report said the spandrels, as built, had a load capacity of 8,400 pounds.

“In light of these conclusions, it will be difficult to establish beyond a reasonable doubt that Jo Ellen Savage’s death was caused by either the criminal recklessness or criminal negligence of the parking facility owners or operators,” he wrote.

Eugster said Tucker should have let a jury decide whether the evidence proved the crime beyond a reasonable doubt. Releasing Marlow’s letter is just an attempt to “let people off the hook” just as the three-year statute of limitations is about to expire, he added.

“It’s a whitewash,” Eugster said. “There is no next step. It’s too late for a grand jury, it’s too late for a special inquiry judge.”

Ron Wright, a former police detective from Riverside, Calif., who has been researching River Park Square for several years, said he still questions whether the garage is safe and wants the city to order another inspection.

“To me this is a much more important issue than whether Mr. Tucker files any criminal charges,” Wright said in an e-mail just hours after Tucker’s announcement. “We’ve already had one death in this garage. Is there any assurance to the public that there will be no further structural failures?”

After Savage’s death, garage officials said the facility exceeds code and insisted it was safe, but a few months later they added steel bars and plates to give the spandrels additional strength in any future collisions.

Swinton, who handled many of the legal issues surrounding the mall’s renovation and the controversial public-private partnership, said Cowles Co. has always asserted the garage met building standards. Whether Tucker’s decision will end questions about the structure, or any other controversy surrounding the project, remains to be seen, he said.

“The River Park Square project has been looked at from different angles on a variety of issues,” Swinton said. “I can’t imagine what else is left to be investigated.”